I do not concur in the opinion of Mr. Justice BUTZEL affirming the order of the trial court amending the decree so as to award legal custody of the parties' minor children, both under 12 years of age, to the friend of the court, with physical custody to the husband. *Page 465
As stated in my Brother's opinion, the trial court, in its opinion, commented upon the fact that neither party made an issue of the matter of the fitness of the other. The undisputed testimony is that the wife's home is a satisfactory one in which to rear the children, with proper facilities for training and education. The trial court did not find nor is there evidence to support a finding of unfitness on the part of the wife to have the custody or unsatisfactory conditions for the children in her home.
In Eichholtz v. Eichholtz, 319 Mich. 42, we said:
"The statute, 3 Comp. Laws 1929, § 12852 (Stat. Ann. § 25.311), favors awarding custody of children below the age of 12 years to the mother. The provisions of the statute are subject, however, to the discretionary power of the court to safeguard the best interests of the child. Doolittle v. Doolittle, 311 Mich. 181; Smith v. Ritter, 292 Mich. 26; Davis v. Davis,296 Mich. 711. This power of the court is recognized by the statute itself. See, also, 3 Comp. Laws 1929, § 12738 (Stat. Ann. § 25.96).
"The effect to be given the statutory preference in the mother and the test as to when the best interests of the child may be said to require that that statutory preference be disregarded have frequently been considered by this Court. The following quotations from our decisions set up the guideposts for decision here:
"`While the statutory preference of the mother to custody (3 Comp. Laws 1915, § 11484) must give way to the best interest of the child in a proper case (Weiss v. Weiss, 174 Mich. 431), it is not to be lightly disregarded.' Fuller v. Fuller,249 Mich. 19.
"`Prima facie plaintiff was entitled to the custody of the two children when defendant by subterfuge took them from her and removed them beyond the jurisdiction of the court. A presumption of her *Page 466 fitness obtained until rebutted by some competent evidence.'Nichols v. Nichols, 222 Mich. 119, 126.
"`The statute (3 Comp. Laws 1915, § 11484) gives the custody of a child under 12 years of age to the mother, in recognition of the fact that as a general rule the present welfare of children of this age requires a mother's care. While courts have discretionary power to disregard the provisions of this law, it should never be done unless it clearly appears that the mother's character is such that her child should not be with her, or that for some other good and clearly apparent reason the best interests of the child would be subserved if its custody were elsewhere.' Carlson v. Carlson, 237 Mich. 105.
"`It is only when the mother is not of good moral character, or where conditions exist in her home that make it an unfit place for the child, that the court will ignore the provision of the statute and give the father the custody of children under the age of 12 years.' Epstein v. Epstein, 234 Mich. 200."
No reason or cause having been found to warrant or justify ignoring the statutory preference for the mother to have custody, it follows, for reasons stated in the Eichholtz Case, that the order amending the decree should be reversed and a decree entered in this Court awarding custody of the minor children to defendant and remanding the case to the circuit court for a determination of the amount and manner of payments to be made by plaintiff to defendant toward the support and maintenance of the children, and of appropriate times and places for visitation of the children by plaintiff, and for the purpose of taking such further proceedings in the case as may from time to time to that court seem just and proper. Costs to defendant.
SHARPE, J., concurred with DETHMERS, J. *Page 467